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CRIA Mis-stating Result of Federal Court of Appeal Decision?

May 21, 2005 at 04:36 |

On Thursday, the Federal Court of Appeal upheld the lower court’s decision denying CRIA’s request for the identities of 29 alleged file sharers. Michael Geist now notes that CRIA appears to be misrepresenting to the media the Court’s decision as a determination that file-sharing is illegal:

Earlier today I provided links to some of the coverage from Thursday’s file sharing decision. A small article from Dose, the free Canwest daily paper, was not included (it isn’t online) but merits some attention.

The article features brief Q & A’s with Alex Cameron, who argued the privacy issues for CIPPIC, and with Graham Henderson, CRIA’s President. In response to an open-ended question on his thoughts on the decision, Henderson responds:

“The judge has determined that uploading, downloading, it’s illegal.”

Actually, the court did no such thing. Concluding its copyright discussion at paragraph 54, the court says:

“I make no such findings here and wish to make it clear that if this case proceeds further, it should be done on the basis that no findings to date on the issue of infringement have been made.”

How very odd. Not only has the Court not done any such thing, but it seems quite clear that it has not done any such thing.

Meanwhile, Cory Doctorow has some, er, carefully chosen words on the subject.


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One Response to “CRIA Mis-stating Result of Federal Court of Appeal Decision?”


  1. May 22nd, 2005 at 13:58

    Hi Rob,

    As always, interesting and insightful posts.

    I also agree with you, the Federal Court of Appeal did not make any findings with respect to copyright infringement. However, the Court of Appeal did provide some additional guidance and clarification as to what acts would or would not constitute infringement (i.e. what would be covered by the private copying exemption).

    In particular, the Court of Appeal noted that “…if the users were not using an “audio recording medium”, the defence of private copying would not be available”. It also cited a previous decision wherein it ruled that a digital audio recorder (i.e. an MP3 player) is not a medium. See my own posting of today for more details (http://www.gelsing.ca/blog/?p=66).

    Whether a computer hard-drive (in a p2p situation) falls under the definition of “audio recording medium”, and thus under the private copying exemption, seems to me to be an undecided issue as well – and the Court of Appeal certainly did not address that issue. Perhaps that is what Graham Henderson was aiming at.

    Obviously the broad statement that “The judge has determined that uploading, downloading, it’s illegal.” was incorrect. Legality or illegality depends on the facts in each particular case (e.g. what content was uploaded or downloaded and onto what medium).

    Any thoughts on the hard drive / audio recording medium issue?